State v. Hastings

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
RANDY LEIGH HASTINGS, Petitioner.
No. 1 CA-CR 18-0385 PRPC
FILED 11-8-2018
Petition for Review from the Superior Court in Maricopa County
Nos. CR2009-005473-001
CR2011-149772-001
CR2012-008366-001
The Honorable David B. Gass, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane M. Meloche
Counsel for Respondent
Randy Leigh Hastings, Tucson
Petitioner
STATE v. HASTINGS
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Jon W. Thompson joined.
W I N T H R O P, Judge:
¶1 Randy Leigh Hastings petitions this court for review of the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition for
review and, for the reasons stated, grant review but deny relief.
¶2 In Maricopa County Superior Court Case Number (“Case No.”)
CR2009-005473-001 (“the 2009 case”), Hastings pled guilty to possession or
use of dangerous drugs, and the superior court placed him on probation for
three years. While on probation, Hastings pled guilty to possession of
dangerous drugs for sale in Case No. CR2011-149772-001 (“the 2011 case”).
Based on the guilty plea in the 2011 case, the court revoked Hastings’
probation. Approximately three months after his guilty plea in the 2011 case,
Hastings pled guilty to another count of possession of dangerous drugs for
sale in Case No. CR2012-008366-001 (“the 2012 case”). Consolidating the three
matters for purposes of sentencing, the superior court imposed concurrent
prison sentences, the longest being ten years flat time.
¶3 More than five years after sentencing, Hastings filed a “Motion
To Correct Error And To Clarify Record Pursuant To Rule--24.4, Ariz. R. Crim.
Proc.” (“the Motion”), challenging a calculation by the Department of
Corrections (“DOC”) regarding the community supervision term to be served
upon Hastings’ release. Hastings argued that, because the sentencing minute
entries only indicated a term of community supervision after the 2.5-year
sentence in the 2009 case, DOC had improperly calculated a term of
community supervision based on the ten-year sentence imposed in the 2012
case. For relief, Hastings requested the court issue a nunc pro tunc order
specifying Hastings’ community supervision term be determined solely on the
sentence in the 2009 case.
¶4 After the superior court failed to rule on the Motion within sixty
days, Hastings sought special action relief in this court. We accepted
jurisdiction but declined Hastings’ request to rule upon the merits of his
Motion. Instead, we noted the Arizona Constitution requires the superior
court to rule on matters submitted for decision within sixty days, see Ariz.
2
STATE v. HASTINGS
Decision of the Court
Const. art. 6, § 21; Ariz. R. Sup. Ct. 91(e), and we directed the court to rule on
Hastings’ Motion.
¶5 Two days after this court’s order, the superior court addressed
the Motion and treated it as a request for post-conviction relief under Rule 32.
See Ariz. R. Crim. P. 32.3(a). In denying relief, the court recognized the plea
agreements in all three cases include a stipulation that Hastings will “serve a
term of community supervision equal to one-seventh of the prison term to be
served consecutively to the actual period of imprisonment.” The court also
determined community supervision following a prison sentence is mandatory
under Arizona Revised Statutes (“A.R.S.”) section 13-603(I). See State v.
Jenkins, 193 Ariz. 115, 119, ¶ 11 (App. 1998) (“The plain language of A.R.S.
section 13-603(I), read in conjunction with the related statutes, indicates the
Legislature’s intent to require a term of community supervision for all
prisoners, whether or not they are eligible for early release.”). Finally,
although the court agreed with Hastings that the sentencing minute entries in
the 2011 and 2012 cases did not contain terms of community supervision, the
court observed that it did impose such terms verbally at the sentencing
hearing. Concluding that the absence of community supervision terms in the
sentencing orders resulted from a clerical mistake, the court amended the
applicable minute entries nunc pro tunc to reflect community supervision is
imposed in the 2011 and 2012 cases pursuant to § 13-603(I). This timely
petition for review followed.
¶6 On review, Hastings argues the superior court lacked
jurisdiction to amend the minute entry rulings nunc pro tunc. Also, relying on
State v. Dawson, 164 Ariz. 278 (1990), Hastings argues the State’s failure to
respond to his Motion “waived the opportunity to amend sentence.”1 We are
unpersuaded by either argument.
¶7 Hastings presumes the superior court’s nunc pro tunc order
modifies his sentence. It does not. Rather, by amending the minute entry
rulings, the court corrected the record. See State v. Hanson, 138 Ariz. 296, 305
(App. 1983). “The judgment of conviction and sentencing on the judgment are
complete and valid at the time the court orally pronounces them in open
1 Misapprehending the special action relief this court granted, Hastings
also incorrectly asserts this court ordered the superior court to grant his
Motion.
3
STATE v. HASTINGS
Decision of the Court
court.”2 Ariz. R. Crim. P. 26.16; see also Hanson, 138 Ariz. at 304-05 (“Where
there is a discrepancy between the oral sentence and the written judgment, the
oral pronouncement of sentence controls.”). And the court clearly had
authority to ensure the sentencing minute entries correctly reflected the
court’s pronouncement of sentence. See Ariz. R. Crim. P. 24.4 (“The court on
its own or on a party’s motion may, at any time, correct clerical errors,
omissions, and oversights in the record. The court must notify the parties of
any correction.”); see also Black v. Indus. Comm’n, 83 Ariz. 121, 125 (1957) (“We
have consistently held that the function of an order or judgment nunc pro tunc
is to make the record speak the truth and that such power is inherent in the
court. . . . It is to record now for then an order actually made or a judgment
actually rendered which through some oversight or inadvertence was never
entered upon the records of the court by the clerk or which was incorrectly
entered.” (citations omitted)), overruled on other grounds by Estate of Hash v.
Henderson, 109 Ariz. 174, 177, modified on other grounds, 109 Ariz. 258 (1973).
¶8 Regarding the State’s purported “waiver,” Hastings’ reliance on
Dawson is misplaced. Dawson addressed whether this court, when the State
does not appeal from the sentence, has the authority to modify an illegally
lenient sentence imposed after a jury trial. 164 Ariz. at 279-80. Here, not only
did Hastings agree to community supervision in all three cases, but his
sentence—as verbally pronounced by the court—is lawful. In any event,
regardless of the State’s ostensible waiver, the superior court had the authority
under Rule 24.4 to sua sponte correct the record to properly reflect Hastings’
terms of community supervision.
¶9 To the extent Hastings challenges the superior court’s findings
and legal conclusions, the court’s dismissal order clearly identified and
correctly ruled upon the merits. Further, the court did so in a thorough, well-
reasoned manner that will allow any future court to understand the court’s
rulings. Under these circumstances, no useful purpose would be served by
this court rehashing the superior court’s correct ruling in a written decision.
State v. Whipple, 177 Ariz. 272, 274 (App. 1993). Therefore, we adopt the
superior court’s reasoning.
2 We presume the court’s finding that it verbally imposed terms of
community supervision is supported by the sentencing transcript, which is
not included in the record on review. See State v. Zuck, 134 Ariz. 509, 513 (1982)
(“Where matters are not included in the record on appeal, the missing portions
of the record will be presumed to support the action of the trial court.”
(citation omitted)).
4
STATE v. HASTINGS
Decision of the Court
¶10 For the foregoing reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
5